NCAA Opposes Rehearing on Student-Athlete Pay

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     SAN FRANCISCO (CN) – There is no need for to rehear an appeal over compensating student-athletes, the National College Athletic Association told the Ninth Circuit on Monday.
     The NCAA’s opposition brief comes just over a month after a three-judge panel of the Ninth Circuit affirmed the finding that it failed to properly compensate student athletes.
     Though the Sept. 30 ruling kept cash off the table, the panel said the NCAA could offer tuition relief.
     Student athletes challenging the scheme moved last month for an en banc rehearing, claiming that the panel erred in “extinguish[ing] the possibility of modest revenue-sharing with college athletes.”
     The NCAA’s 24-page opposition brief contents that the athletes failed to present a question of “exceptional importance” that would warrant rehearing the appeal.
     “Panels of this Court are frequently asked to set aside factual findings as clearly erroneous; if mere disagreement with how a panel conducted clear-error review were a basis for rehearing en banc, rehearings would be commonplace,” according to the NCAA’s brief, signed by attorney Seth Waxman.
     In their petition for the rehearing, the student-athletes led by former basketball star Ed O’Bannon said the panel ruling had focused improperly on preserving amateurism instead of relevant antitrust issues, such as effects of restraining consumer demand.
     “The majority’s unsupported and implausible conclusion that ‘consumers will flee’ if college athletes ‘earn one dollar above their cost of school attendance’ was plainly contradicted by evidence and is ‘a difficult argument to swallow,'” the petition for rehearing states, signed by class counsel Michael Hausfeld.
     NCAA attorney Waxman countered Monday meanwhile that the focus on preserving amateurism stems from both the irrelevance of consumer demand and the recognition that amateurism is “what makes college sports a different product.”
     Waxman also scoffed at Hausfeld’s contention that the panel came “out of nowhere” with the conclusion that “a restraint is patently and inexplicably stricter than is necessary to accomplish all of its procompetitive objectives.
     Though Hausfeld said this statement set a new legal standard, Waxman said it merely reinforces the concept that a restraint can be invalidated if it is not reasonably necessary to achieve a procompetitive end.
     In its conclusion, the NCAA said that the underlying appellate ruling resolved “dangerous precedent” that the lower court set for judicial intrusion into operational decisions made by joint ventures like the NCAA.
     “If the district court’s micromanaging were valid, then courts could order changes to myriad other rules – regarding transfer students or roster sizes, for example – merely on the ground that a court thought the revised rule would be more reasonable,” said Waxman, an attorney with the Washington firm Wilmer Cutler Pickering Hale and Dorr. “That is manifestly improper.”
     The class’s attorney, Hausfeld, hails from D.C. as well.
     O’Bannon, the former University of California, Los Angeles, player behind the case, filed suit back in 2009.
     He and 20 other student athletes claim they have a right to share in profits NCAA makes by licensing players’ names, images and likenesses to video game companies like Electronic Arts.
     Following a two-week bench trial, U.S. District Judge Claudia Wilken ordered the schools to set aside $5,000 per player each year for the use of their likenesses, funds that would be held in a trust while the players remained in college.